The electric chair is now an authorized backup to lethal injection in Tennessee. It's the first state to make the electric chair mandatory when lethal injection drugs are unavailable.
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Arizona attorneys have asked the U.S. Supreme Court to consider whether state statutes give too much discretion to prosecutors to determine which murders deserve to be punished by a death penalty, and whether the inability of certain counties to fund capital trials violates the due process clause of the Constitution.(Photo: Mark Henle/The Republic)

His 2015 challenge came as a number of inmates across the country died in botched executions in which they writhed, appeared to gasp for air, and made noises or indications of pain even though they were supposed to be unconscious or paralyzed. In one case, an inmate took up to two hours to die.

Lawyers for the condemned blamed new drugs, ways of making them or their sources, including compounding pharmacies, which are only lightly regulated by the federal government.

Legal questions surrounding the issue are arriving now in South Carolina as prison officials across the country have scrambled for execution drugs after pharmaceutical companies stopped sending them if they were to be used for executions.

Terrell’s lawyers argued on appeal that they feared a botched execution without more information about the compounding pharmacy producing the drug. They argued that a drug for executions received earlier that year by the state was improperly cloudy. An expert for Terrell testified had it been injected it would have caused "immense pain."

Georgia’s secrecy law prohibited disclosure of the source of the drugs.

The 11th U.S. Court of Appeals rejected the appeal but not without voicing concerns about a process that seemingly prevented a condemned inmate from acquiring evidence to prove that his execution might be unconstitutionally cruel and unusual punishment.

“The shroud of secrecy imposed by Georgia law effectively insulates the state of Georgia’s source, quality and composition of pentobarbital from any scrutiny, leaving the condemned without any meaningful notice or opportunity to be heard about the specific risks he faces from the state’s reliance on an unidentified compounding pharmacy,” Judge Beverly Martin wrote. “This leaves Mr. Terrell with no ability to plead facts necessary to meet the demanding burden the law imposes on him.”

The next day in December 2015, Terrell was strapped to a gurney, and a nurse took an hour to place the IV needles in his arms, the Atlanta Journal-Constitution reported. Terrell winced in pain, mouthed “didn’t do it” and later was pronounced dead, according to reports.

Fourteen states now have secrecy laws to protect the source of drugs used in executions.

Some lawmakers, including state Sen. William Timmons of Greenville, want South Carolina to become No. 15.

Stalled executions

South Carolina has not carried out an execution since 2011. It would not be able to now, officials say, because all the state’s execution drugs have expired, and it is difficult if not impossible to find more as long as the source of the drugs can be publicly disclosed. Without the drugs, victims' families in murder cases are faced with uncertainty about the death penalty, supporters of a shield law say.

Those representing the inmates argue that all of the state’s condemned inmates are still in some process of appeal and therefore there is no urgency to the issue of lethal injection. They also argue that without knowing the source of the drugs, South Carolina might see something go wrong in its executions.

"I think that if we don't know where they come from or who makes them or how they are made or are tested, I think that leads to definitely a greater risk of something going wrong," said Lindsey Vann, executive director of Justice 360, which represents death-row inmates.

Thirty-six inmates await execution on the state’s death row, according to the state attorney general’s office, and 11 have reached the point at which they have chosen their method of being killed. All but one have chosen lethal injection, the default method. The other has selected the electric chair.

Timmons has proposed both a shield law and a bill that would require the electric chair be used if lethal injection is unavailable.

South Carolina stopped using the electric chair as its mandatory means of execution in the 1990s, when lethal injection became the preferred method in other states after supporters argued it was a more humane method. James Earl Reed was the last inmate to die in South Carolina’s chair, in 2008.

According to information prepared by the state attorney general’s office, shield laws around the nation have been challenged in court, but there has not been a U.S. Supreme Court ruling that executions should be halted if a condemned inmate does not know enough about the drugs being prepared to kill him.

The 14 states that have shield laws are Georgia, North Carolina, Tennessee, Virginia, Florida, Arkansas, Arizona, Louisiana, Missouri, Ohio, Oklahoma, South Dakota, Texas and Delaware.

When the Supreme Court upheld lethal injection in 2008, it ruled that the three-drug execution method then in use could continue as long as it did not pose a substantial risk of harm before the death of the inmate. To challenge a particular lethal injection, inmates would also have to show there was a feasible alternative to the drugs at issue, the court said.

Condemned inmates have attacked the new drug protocols arguing they pose a risk of harm or violate the 8th Amendment to the Constitution’s ban on cruel and unusual punishment. But secrecy laws have prevented the inmates from pursuing avenues to prove their cases because they cannot discover the source of the drugs.

Heightened fears

Their fears have been heightened by news reports of what some have described as botched or unusual executions.

According to an article in the Journal of Criminal Law and Criminology last year, an article included in the South Carolina attorney general’s packet, on Oct. 15, 2013, William Happ of Florida became the first prisoner in the nation to be executed with the sedative midalozam hydrochloride.

According to a report in the Broward County Sun-Sentinel, it took Happ about 13 minutes to die. The Journal reported that witnesses said there appeared to be more body movements and he appeared to be conscious longer than in traditional lethal injections.

“At times his eyes fluttered, he swallowed hard, his head twitched, his chest heaved,” reporter Tonya Alanez wrote.

On April 29, 2014, Oklahoma used the same drug in the execution of Clayton Lockett. He “writhed, moaned and clenched his teeth,” according to the Journal, and appeared to be conscious even though his execution drug was a sedative. The execution took 43 minutes, according to the Journal, and an autopsy later said the cause of death was the drugs. A report on what went wrong stated that an IV line had become dislodged from his groin and some of the drugs were not entering the veins.

On January 16, 2014, Ohio used midalozam and hydromorphone for the execution of Dennis McGuire, the first time the combination had been used for an execution, according to the Journal. McGuire made several loud snorting noises and opened his mouth as if gasping during the 15-minute execution, according to the Journal.

Arizona used the same drug combination on Joseph Wood in his 2014 execution. Reporter Michael Kiefer of The Republic, who witnessed the execution, reported that it took more than two hours.

“It was death by apnea,” he wrote. “And it went on for an hour and a half. I made a pencil stroke on a pad of paper, each time his mouth opened, and ticked off more than 640, which was not all of them, because the doctor came in at least four times and blocked my view.”

In the Oklahoma execution of Charles Frederick Warner in 2015, an autopsy found he had been given the wrong drug, potassium acetate instead of potassium chloride, according to reports.

The Journal reported that a study of U.S. lethal injections between 1900 and 2010 found that 7.1 percent were botched compared to 3 percent for other types of executions. In all of the recent cases of botched executions, the inmates died.

Dissenting voices

Some judges have voiced concerns about the process in appeals or at the trial level.

Georgia Supreme Court Justice Robert Benham, who with another justice dissented in the 2014 opinion rejecting the appeal of a condemned inmate, wrote of his concerns over the Lockett execution.

"I write because I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma," he wrote.

Benham wrote that certainty is a requirement in the death penalty and the state's secrecy law "does nothing to achieve a high level of certainty."

Martin wrote that there should be a way to address both an inmate's rights to know more about the drugs being prepared to kill him and the need to protect the source of such drugs.

"Surely, if we can protect grand jury proceedings and commercial trade secrets, we can come up with a process that protects the important interests of both Georgia and Mr. Terrell as the state carries out 'the gravest sentence our society may impose,'" she wrote.

The drugs used in the traditional, three-drug lethal injection for American executions initially approved by the U.S. Supreme Court came from Europe until policy concerns stopped that supply.

According to the Reporters Committee for Freedom of the Press, the United Kingdom in 2010 banned the exportation of sodium thiopental, the first of the three drugs, to the United States in 2010. The next year, a Danish company that makes pentobarbital refused to sell the drug to any U.S. prison that held executions. Then the European Union banned exportation of any drug that could be used for capital punishment.

As prisons scrambled to find other drugs or to have compounding pharmacies produce them, states enacted secrecy laws out of a fear that harassment against the companies might stop them from producing the drugs. This in turn led inmates to file right-of-access lawsuits seeking information about the companies and the drugs.

In some cases judges have granted inmates’ requests, but other courts have denied them. The U.S. Supreme Court has declined to review cases from condemned inmates claiming a right to such information.

In 2015, Justice Sonia Sotomayor dissented in an appeal in which inmates claimed the use of midazolam amounted to cruel and unusual punishment, claims rejected by the majority of the court.

"The states may well be reluctant to pull back the curtain for fear of how the rest of us might react to what we see," she wrote. "But we deserve to know the price of our collective comfort before we blindly allow a state to make condemned inmates pay it in our names."